CITATION: R v. Tackaberry, 2011 ONSC 5245
DIVISIONAL COURT FILE NO.: 88/10
DATE: 20110909
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DWAYNE TACKABERRY
Defendant
Philip Zylberberg and Julie Lefebvre, for the Crown
Alex Toffoli, for the Defendant
HEARD in Sudbury: August 29, 2011
DECISION ON SENTENCING
[1] Dwayne Tackaberry pleaded guilty to two counts of possession of child pornography on November 23, 2010.
[2] Following the plea, Crown counsel requested that Mr. Tackaberry be declared a Long Term Offender pursuant to s. 753.1 of the Criminal Code, R.S.C. 1985, c. C-46.
[3] The police attended the residence Mr. Tackaberry shared with his father after his father called police with respect to the presence of child pornography on his son’s computer. Mr. Tackaberry was 31 years of age at the time. He is now 32 years of age and he has a prior record including assaults on children and one prior possession of child pornography. The police seized his computer and thumb drive and found 150 images and two videos of child pornography. There was no evidence of file sharing or production.
[4] Mr. Tackaberry was fully assessed for risk of re-offending and prospects of rehabilitation prior to this hearing.
[5] I accept the joint submission of counsel for a sentence of two years on the two counts of possession of child pornography (s. 163.1 of the Criminal Code). Mr. Tackaberry has already spent almost sixteen and a half months in custody and counsel were of the view that a shorter period of jail time would be reasonable. However, they have proposed a term of two years in order to allow Mr. Tackaberry to take advantage of the intensive sex offender treatment program that is only available in federal penitentiary. Mr. Tackaberry, knowing the range of sentences of these offences, consents to this joint submission and is motivated to follow the program.
[6] Dwayne Tackaberry is hereby sentenced to a custodial term of two years to be served in a federal penitentiary. The following ancillary orders are made on consent.
a) An order to comply with the Sex Offender Information Registration Act (SOIRA) under s. 490.012 of the Criminal Code. This order applies for life pursuant to s. 490.013(4).
b) A lifetime order of prohibition under s. 161 of the Criminal Code.
c) An order of forfeiture of things used for child pornography under s. 164.2 of the Criminal Code.
d) An order of forensic DNA analysis under s. 497.04(a) of the Criminal Code.
[7] Counsel also made a joint submission with respect to the declaration of long term offender, which I accept. Dwayne Tackaberry is hereby declared a long term offender. He shall be subject to a long term supervision order for a period of eight years.
[8] I am satisfied that Dwayne Tackaberry has shown
a) a pattern of repetitive behaviour that shows a likelihood of causing injury or severe psychological injury on other persons; or
b) by his conduct in sexual matters including that involved in the commission of his most recent offences, a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
Background
[9] Dwayne Tackaberry was born in 1979. His history and record show the following related incidents and offences:
Prior to December 1992: Alleged sexual assault on a five year old female. Mr. Tackaberry was 12 years old. CAS became involved, no charges were laid.
December 1992: Alleged sexual assault against his younger sister. The CAS was involved and no criminal charges were laid.
1994: Sexual assault Mr. Tackaberry was a youth of 12 -13 years at the time of the offences (1992). The victim was a 10 year old male.
1995: Sexual assault on a 14 year old male while both were serving an open custody sentence. Mr. Tackaberry was 15 years old. 18 months secure custody.
1997: Sexual assault on a 12 year old boy. First conviction as an adult Dwayne Tackaberry was 19 years of age. 22 month custodial sentence.
2007: Assault with weapon, facts: at age 27, Dwayne Tackaberry was residing with a 15 year old male. They became involved in a dispute over Dwayne Tackaberry’s viewing of child pornography; he was asked to stop viewing it and in response assaulted the youth. Two month custodial sentence.
2008: Possession of child pornography: 18 month sentence.
[10] He is a recidivist sex offender and child pornography viewer. This criminal record is an aggravating factor. Mr. Tackaberry has been incarcerated approximately 50% of the time from age 12 onward. In 1998, and in 2009, Dwayne Tackaberry was discharged from treatment programs for sex offenders. Dr. Pallandi reported that Mr. Tackaberry agreed that he had been transferred out of both programs due to his behaviour which he described as alleged sexual misconduct on his part.
[11] The Crown filed a volume of medical and psychiatric reports. Mr. Tackaberry has twice been assessed with respect to the risk of re-offending. He was first diagnosed with pedophilia in 1995. This diagnosis was confirmed by other physicians in 1996, 1997, 2002, and 2011. He began treatment in 1996 for a short time. From 1999 to 2002, Mr. Tackaberry took Depo-Provera, a sex drive suppressant as prescribed. He terminated this treatment as he believed it was not effective.
[12] On the most recent assessment in April 2011, Dr. Pallandi reported that Dwayne Tackaberry continues to endorse attraction to children. However, he also advised that, currently, he is “not particularly” interested in male children.
[13] Mr. Tackaberry has a supportive father and sister. He has approximately grade 9 to 10 equivalent education and limited employment history. He was sexually abused as a young boy. He is currently diagnosed as having Mixed Personality Disorder with both Antisocial and Borderline traits. A number of his hospital admissions showed a level of intoxication or impairment from alcohol.
[14] Mr. Tackaberry is amenable to sex offender treatment programs. Before me, although he doubted the efficacy of the Depo-Provera treatment, Mr. Tackaberry indicated that he was prepared to follow the treatment programs suggested by the treating physicians, including drug treatment.
[15] Most significantly, Mr. Tackaberry, with full understanding of the range of sentences for this offence, given his history and the time already spent in custody, agreed to a sentence of two years in order to take full advantage of an intensive sex offender treatment program. He made it clear that he was highly motivated. This attitude was confirmed by letter from the jail chaplain, who had counselled Mr. Tackaberry during the sixteen and a half months that he has been in jail.
Assessment of Risk
[16] Dr. Pallandi assessed Mr. Tackaberry. It is his view that Mr. Tackaberry’s history as outlined above is a strong independent predictor of future sexual recidivism risks. His history of re-offending took place against the back drop of repeated opportunities for programs and treatments. Dr. Pallandi was of the view that the child pornography can be seen as part of his well-established pattern of behaviour in the service of intractable underlying pedophilia and secondary offending against children. This is further likely facilitated and or elaborated by his antisocial and borderline personality structure.
[17] Dr. Pallandi warned against viewing the pornography charges as a ‘de-escalation’ of the gravity of his offending. He stated that it was his opinion that “the use of pornography simply represents a different expression of his underlying pathology”.
[18] Dr. Pallandi concluded with the opinion that the risk for recidivism with respect to sexual offences towards children would be in the high range.
Feasibility of managing Identified Risks
[19] Although Dr. Pallandi was of the view that Mr. Tackaberry’s risk could be managed in the community, it was only if stringent conditions were placed on him and that his release be managed in a very structured fashion.
[20] In light of the recommendations made by Dr. Pallandi and the terms discussed at this hearing, most of which were accepted by Dwayne Tackaberry, I am of the view that there is a reasonable possibility of eventual control of Dwayne Tackaberry’s risk in the community. In order to manage and control
[21] the risks posed by Dwayne Tackaberry, he shall be supervised in the community for 8 years after he has finished serving the sentence imposed above, pursuant to s. 753.1 of the Criminal Code. This court makes the following recommendations for his supervision.
[22] Recommendation for the Long-term supervision order
When released into the community, Mr. Tackaberry shall live in a controlled residential facility and engage in intensive sex offender treatment and programming including, but not limited to, taking anti-androgen medication by injection as prescribed by his treating psychiatrist. Mr. Tackaberry shall also engage in cognitive skills training and counselling and vocational programs.
The treating psychiatrist shall coordinate the entire program and treatment for Mr. Tackaberry in the community with the supervising parole officer. It is essential that a medical doctor manage this case to ensure the enforceability of any condition with respect to prescribed medications.
Mr. Tackaberry shall submit his urine and or blood when requested on a random basis to determine his sex hormone levels. He shall also sign any release of information in order to facilitate communication with everyone involved.
Mr. Tackaberry shall abstain from the use and possession of intoxicants, as well as provide urinalysis as deemed appropriate by the supervising officer.
Mr. Tackaberry shall not be in the company of any child, male or female, under the age of 18.
Mr. Tackaberry shall not attend any public pools, hotel pools, and hot tubs where it could be reasonably expected for a child under the age of 16 to be present.
Mr. Tackaberry shall not volunteer or maintain employment where children under the age of 18 are expected to be present.
Mr. Tackaberry shall not possess or access child or adult pornography.
Mr. Tackaberry shall report all new relationships to the Supervisor in order for the parole supervisor to be familiar with the offender and to permit contact with family members, friends, and intimate partners to ensure they are aware of Mr. Tackaberry’s risk to children.
The court recognizes that it is extremely difficult to craft an effective term with respect to limits on use and possession of computers and electronic devices that would be effective, workable or intelligible for the term of this order, which will be in effect over the next 10 years. The court has two goals at this time. First and most importantly, the goal is to limit Mr. Tackaberry’s access to child pornography, his access to sharing, distribution and production of pornography, and his electronic communication with youth. Secondarily, in achieving this primary goal, the court does not want to limit Mr. Tackaberry’s eventual reintegration into a community in which the evolution of technology is beyond the prediction powers of the court.
The difficulty rests with the use and possession of any computers or electronic devices capable of storing data in a digital format including, but not limited to: computers, handheld devices (Blackberry, etc.), personal digital assistants (PDA’s), cellular telephones, digital cameras, and digital video cameras. A standard use cell phone which does not have the capacity to access the internet would be an exception.
It is recommended that the Supervisor, in consultation, if necessary, with appropriate IT experts, specifically identify what devices Mr. Tackaberry may access or possess, what programs or applications are permitted on the hardware, where such computers or devices may be located, and what monitoring Mr. Tackaberry must allow.
The use or access of the identified devices (hardware) or software, including any programs or applications may only be made with revocable prior written approval of Mr. Tackaberry’s Supervisor and upon providing all related subscription documentation to his Supervisor as proof of the limitations and terms of service.
It is anticipated that the Supervisor will review the permissions under this term to ensure that they remain appropriate in terms of current available technology and make modifications from time to time as appropriate.
Madam Justice P.C. Hennessy
Released: September 9, 2011
CITATION: R v. Tackaberry, 2011 ONSC 5245
COURT FILE NO.: 88/10
DATE: 20110909
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Dwayne Tackaberry
DECISION ON SENTENCING
Hennessy J.
Released: September 9, 2011